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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 116

P455/06

OPINION OF C J MACAULAY, Q.C.,

Sitting as a Temporary Judge

in the Petition of

N S and F S

Petitioners;

against

THE SCOTTISH LEGAL AID BOARD

Respondents:

________________

Petitioners: Blair; Campbell Smith

Respondents: Mure; The Scottish Legal Aid Board

6 July 2007

Introduction

[1] In this petition for judicial review the petitioners challenge the respondents' refusal to grant them legal aid. The petitioners are the parents of an autistic child. The child was born on 12 April 1996. In accordance with the relevant legislation, which I shall look at later, a Record of Needs has been opened in relation to the child.

[2 ] The petitioners made a placing request to the education authority, South Ayrshire Council ("the Council"), requesting the child's placement in another school which they considered to be more appropriate to his educational needs. That request was refused by the education committee. The petitioners appealed against that decision to an appeal committee. By letter dated 22 December 2003 the Council informed the petitioners that their appeal against the education committee's refusal of their placing request had been rejected. The grounds given were as follows:

" (i) the specified school is not a public school;

(ii) the authority are able to make provision for the special educational needs of the child in a school under their management;

(iii) the authority have offered to place the child in the school referred to in subparagraph (ii) above, and

(2) In all the circumstances it was appropriate to do so."

In terms of the relevant legislation the petitioners have appealed against the education committee's decision to the Sheriff at Ayr, and it is in relation to those proceedings that legal aid is sought.

Legal aid application for appeal to Sheriff

[3 ] The application for legal aid was received by the respondents on 17 February 2004. In that application the child's name appears in the section dealing with the designation of the applicant but the application was signed by the second named petitioner as applicant. On 30 March 2004 the respondents in a communication addressed to the first named petitioner intimated that the application for legal aid had been refused. In that notification the respondents stated that it was considered unreasonable that legal aid should be granted in the particular circumstances of the case and that it had not been shown that there was a probable cause of action.

[4 ] By letter dated 15 April 2004 the petitioners' solicitors submitted an application for review of the refusal of civil legal aid. Subsequently, by letter dated 29 April 2004, the petitioners' solicitors forwarded to the respondents a copy of an initial writ in respect of the action raised by the petitioners in the Sheriff Court at Ayr seeking to challenge the respondents' decision in refusing their placement request. In that letter the petitioners' solicitors stated that the action had been sisted to allow the application for legal aid to proceed.

[5 ] By letter dated 28 May 2004 the respondents wrote to the petitioners' solicitors stating that the financial information provided with the application related to the resources of the child rather than to his parents. The letter went on to say that in order to properly assess the financial aspects of the civil legal aid application a Financial Eligibility Form had to be completed and submitted by the petitioners. In response to that letter the petitioners' solicitors submitted that it was the child's rights that were being enforced and not those of the parents and therefore it ought to be the child's resources that the respondents should found upon for its decision on financial eligibility. The child has no resources.

[6 ] Subsequent correspondence resulted in stalemate and eventually by letter dated 1 July 2004, the petitioners' solicitors invited the respondents to issue a decision setting out their reasoning. In response to that invitation, by letter dated 17 August 2004, the respondents put forward their position in relation to the refusal of civil legal aid as follows:

"Our view is that the parent is not acting in a representative capacity in appeals in terms of section 28(f). It is correct that the action is about the child but the child cannot in terms of section 28(f) appeal the refusal of placement request and the section gives that right only to the parent. The parent is therefore the litigant."

[7 ] By letter dated 20 August 2004 the petitioners' solicitors responded to the respondents' letter, challenging the respondents' approach and arguing that the petitioners were acting in a "representational, protective and administrative role for the sake of the child". The respondents responded to that letter by letter dated 27 August 2004, effectively maintaining their position and indicating that they would not be able to progress consideration of the application until sufficient information concerning the parents' resources was provided. On 4 November 2004 the respondents treated the application for civil legal aid as having been abandoned. Per incurim the respondents omitted to intimate to the petitioners or their solicitors that the application had been treated as having been abandoned.

Legal Aid for Judicial Review

[8 ] Subsequently an application was made for civil legal aid to challenge the respondents' decision to refuse legal aid by way of judicial review. The application is dated 22 October 2004 and the applicant again is the child and the application is signed by the second named petitioner. By a communication dated 13 December 2004 intimation of the refusal of that application was addressed to the child and to the solicitors acting on behalf of the petitioners. In the notification sent to the solicitors the reasons for refusal are stated to be that there was no probable cause in that the petitioners could not seek legal aid to support any challenge of the education committee's decision in a representative capacity.

[9 ] An application for review of the refusal of legal aid was made to the Sheriff for Lothian and Borders in terms of section 14(4) of the Legal Aid (Scotland) Act 1986. That application was heard by Sheriff Principal A L Stewart QC and in a judgement dated 14 June 2005 he granted the application. Following upon that decision, the respondents on 29 August 2005 issued a legal aid certificate in the name of the child.

The petition

[10 ] Statement 5 of the petition is in the following terms:

"That the petitioners seek:-

(i) Declarator that the Respondents erred in law in making their decision of 17^th and 27^th August and 4^th November 2004 to refuse civil legal aid;

(ii) Declarator that the Respondents acted in breach of Article 2 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms 1950 and thereby breached Section 6(1) of the Human Rights Act 1998 in making their said decision to refuse civil legal aid; and

(iii) Production and Reduction of the said decision."

Mr Blair, counsel for the petitioners, indicated at the outset of his submissions that he did not propose to present the human rights argument that was foreshadowed in the petition and that he was not insisting upon his second plea in law.

The Legislative Background
[11 ] There are two pieces of legislation that are of importance to the issues in this case namely the Education (Scotland) Act 1980 as amended by a number of subsequent statutes ("the 1980 Act") and the Children (Scotland) Act 1995 ("the 1995 Act"). For present purposes the relevant provisions of the 1980 Act are as follows:

"PART I

PROVISION OF EDUCATION BY EDUCATION AUTHORITIES

School education and further education

1.- Duty of education authorities to secure provision of education.

(1) Subject to subsections 1(A) and (2A) below, it shall be the duty of every education authority to secure that there is made for their area adequate and efficient provision of school education and further education.

(5) (d) "special educational needs", in relation to a child or young person, are needs caused by a learning difficulty which he has which calls for provision for special educational needs to be made for him. ...

PART II

RIGHTS AND DUTIES OF PARENTS AND FUNCTIONS OF EDUCATION AUTHORITIES IN RELATION TO INDIVIDUAL PUPILS

General principle

28.A Pupils to be educated in accordance with the wishes of their parents.

(1) Where the parent of a qualifying child makes a written request to an education authority to place his child in the school (other than a nursery school or a nursery class in a school) specified in the request, being a school under their management, it shall be the duty of the authority, subject to subsections (2), (3), (3A) and (3F) below, to place the child accordingly. Such a request so made is referred to in this Act as a 'placing request' and the school specified in it is referred to in this Act as the 'specified school'.........

28G.- Application of sections 28A to 28F and Schedule A1 to young persons.

Sections 28A to 28F of this Act and Schedule A1 to this Act shall apply in relation to a young person who is a pupil and in that application references in those sections to the parent of a qualifying child as well as references to the qualifying child himself shall be construed as references to the young person.......

30. Duty of parents to provide education for their children.

(1) It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means........

31. School age.

Subject to sections 32(3) and 33(2) and (4) of this Act, a person is of school age if he has attained the age of five years and has not attained the age of sixteen years.........

Children requiring special education

60.- Functions of education authority in relation to children and young persons with certain special educational needs.

(1) It shall be the duty of an education authority to disseminate in their area information as to the importance of the early discovery of special educational needs and as to the opportunity for assessment available under the following provisions of this Act.

(2) An education authority -

(a) shall have power, as regards-

(i) children in their area who have not attained school age [and are not children in respect of whom the authority is under a duty by virtue of subparagraph (ii) of paragraph (b) below]; and

(ii) young persons belonging to their area (in accordance with section 23(3) of this Act) who are receiving school education; and

(b) shall be under a duty, as regards children belonging to their area (in accordance with section 23(3) of this Act) who

(i) are of school age[;or]

[(ii) have not attained school age but, being at least two years of age, have come to the attention of the authority as having, or appearing to have, special educational needs,]

in accordance with the provisions of section 61 of this Act, to establish which of those children or, as the case may be, young persons have pronounced, specific or complex special educational needs which are such as require continuing review and to open and keep a Record of Needs of each such child or young person......

61.- Examination and assessment of children and young persons.
(7) It shall not be lawful for an education authority to establish, under section 60 of this Act, that a young person has pronounced, specific or complex special educational needs such as require continuing review and to record him unless-

(a) that young person has undergone such process of [observation and] assessment as the authority consider necessary for the purpose of affording to them advice as to his special educational needs and whether or not they ought to record him; and

(b) that young person or, where the education authority are satisfied that a young person is not capable of expressing his views for the purposes of this section, his parent has been invited by the authority, by notice in writing, to express to the authority, within 14 days from the date of the notice or such longer period as the notice may specify, his views as regards the special educational needs of the young person and the measures required to meet those needs.

63.- Appeals against decisions about recorded children or young persons.

(1) The parent of a recorded child may refer to an appeal committee set up under section 28D of this Act......

(d) subject to subsection (4) below, their decision refusing his placing request in respect of the child.

(2) Where the education authority were satisfied that a young person was not capable of expressing his views for the purposes of section 61(7) of this Act, his parent and, in any other case, the young person himself may refer to an appeal committee set up under section 28D of this Act-

(3) A decision of an education authority as to nomination of a school to be attended by a recorded child or recorded young person may be referred under subsection (1)(c) or (2)(b) above only if the parent or, as the case may be, the young person has made a placing request......

64.- Provisions supplementary to section 63.

(2) Subject to subsection (1) above, an appeal committee may, on a reference made to them under section 63(1) or (2) of this Act, confirm the education authority's decision as to nomination, for the purposes of section 65D(2)(d) of this Act, of a school to be attended by the child or young person to whom the reference relates or refusing a placing request in respect of him if they are satisfied that-

(a) in relation to the placing request, one or more of the grounds of refusal specified in section 28A(3) of this Act as it applies to recorded children or, as the case may be, recorded young persons exists or exist; and

(b) it is, in all the circumstances, appropriate to do so

but otherwise shall refuse to confirm the authority's decision and shall, where they so refuse, require the education authority to place the child or young person in the specified school........

(10) An appeal committee shall notify their decision under this section and the reasons for it in writing to the parent or, as the case may be, young person who made the reference to them and to the education authority and, where they confirm the education authority's decision as to the nomination of a school to be attended by the child or young person or refusing the placing request to which the reference relates, they shall inform the parent or, as the case may be, the young person who made the reference to them of his right of appeal to the sheriff under section 65 of this Act.

65.- Appeal to sheriff on the placing in a school of a recorded child or young person.

(1) A parent or young person who has made a reference to an appeal committee under section 63(1)(c) or (d) or 2(b) or (c) of this Act may appeal to the sheriff against the decision of the appeal committee on that reference.......

135.- Interpretation.

(1) In this Act, unless the context otherwise requires,-

'child' means a person who is not over school age;

'parent' includes guardian and any person who is liable to maintain or has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to, or has care of a child or young person;.......

'pupil', where used without qualification, means a person of any age for whom education is or is required to be provided under this Act; and a pupil shall be deemed to be attending or in attendance at a school if he is shown by the register of admission and withdrawal;.......

'Record', and 'recorded' and other cognate expressions have the same respective meanings as in section 60 of this Act;

'school age' shall be construed in accordance with section 31 of this Act;

'young person' means a person over school age who has not attained the age of eighteen years.......

SCHEDULE 2A

APPLICATION OF CERTAIN PROVISIONS OF THIS ACT TO RECORDED CHILDREN AND YOUNG PERSONS

'28A.-

(1) Where the parent of a recorded child makes a written request to an education authority to place his child in the school specified in the request, being a school under their management, it shall be the duty of the authority, subject to subsections (2) and (3) below, to place the child accordingly; and where the parent of a recorded child makes a written request to the education authority for the area to which the child belongs (in accordance with section 23(3) of this Act) to place his child in the school specified in the request, not being a public school but being

(a) a special school the managers of which are willing to admit the child,

(b) a school in England and Wales or in Northern Ireland, the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young persons) with pronounced, specific or complex special educational needs;

it shall be the duty of the authority, subject to subsections (2) and (3) below, to meet the fees and other necessary costs of the child's attendance at the specified school. Such a request so made is referred to in this Act as a "placing request" and the school specified in it is referred to in this Act as the "specified school"........

(4) An education authority shall inform a parent in writing of their decision on his placing request and, where they decide to refuse it, shall give him written reasons for their decision and inform him of his right to refer it under section 63 of this Act to an appeal committee......

4.-

(1) Sections 28A, 28B and 28D of this Act and Schedule A1 to this Act shall, subject to the provisions of this paragraph, apply in relation to a recorded young person as they apply in relation to a recorded child.

(2) For the purposes of the application of those provisions to be recorded young persons, references therein to the parent of a recorded child as well as references to the child himself shall, subject to sub-paragraph (3) below, be construed as references to the recorded young person.

(3) Sub-paragraph (2) above does not apply in a case where, for the purposes of section 61(7) of this Act, the education authority were satisfied that the young person was not capable of expressing his views for the purposes of that section.

Sections 28C, 28E(1) to (6) and 28F(1) and (5) to (7) of this Act shall not apply in relation to a recorded young person (corresponding provision being made in sections 63 to 65 of this Act)".

[12 ] The 1995 Act so far as relevant for present purposes provides:

"Parental responsibilities and parental rights

1.-(1) Subject to section 3(1)(b) and (3) of this Act, a parent has in relation to his child the responsibility-

(a) to safeguard and promote the child's health, development and welfare;......

(d) to act as the child's legal representative,........

(2) 'Child' means for the purposes of-

(a) paragraphs (a), (b)(i), (c) and (d) of subsection (1) above, a person under the age of sixteen years;

2.-(1) Subject to section 3(1)(b) and (3) of this Act, a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right......

(d) to act as the child's legal representative.

(4) The rights mentioned in paragraphs (a) to (d) of subsection (1) above are in this Act referred to as 'parental rights'; and a parent, or any person acting on his behalf, shall have title to sue, or to defend, in any proceedings as respects those rights .........

Court Orders

Court orders relating to parental responsibilities etc.

11.-(1) In the relevant circumstances in proceedings in the Court of Session or Sheriff Court, whether those proceedings are or are not independent of any other action, an order may be made under this subsection in relation to -

(a) parental responsibilities;

(b) parental rights;....."

[13 ] It is also necessary to have regard to the "The Civil Legal Aid (Scotland) Regulations 2002" ("the 2002 Regulations"). The relevant provisions of these Regulations are as follows:

Interpretation

2.(1) In these Regulations -

" 'child' means a person under the age of 16 years;

'legal representative' means a person having parental responsibilities in relation to a child;

'parental responsibilities' has the meaning given in section 1(3) of the 1995 Act;

'parental rights' has the meaning given in section 2(4) of the 1995 Act;....

Form of application
5.-(1) Subject to regulations 6 and 18 below, an application for legal aid under section 14 of the Act shall be-

(a) in writing, in such form as the Board may require,

Applications on behalf of children

6.-(1) Without prejudice to any right of a child to apply under regulation 5 above, application on behalf of a child may be made by the child's legal representative or by any person in whose care the child is, or by a person acting for the purposes of any proceedings as the child's tutor or curator.

Attendance for interview and supply of information

9.-

(2) Where an applicant for legal aid fails to comply with a requirement under paragraph (1) above;

(a) the Board may treat the application as having been abandoned, and where it does so it shall give intimation of the abandonment to the applicant and any opponent;

Assessment of recourses, etc. of person making application in representative, fiduciary, official or other capacity

14.-(1) Where the applicant is a person who is concerned in the proceedings only in a representative, fiduciary or official capacity or is a named person by virtue of any of sections 250 to 254 and 257 of the Mental Health (Care and Treatment) (Scotland) Act 2003, then for the purpose of determining that person's disposable income and disposable capital, and the amount of any contribution required under section 17 of the Act, the personal resources of the applicant shall be disregarded but regard shall be had to the value of any property or the amount of any fund out of which the applicant is entitled to be indemnified and to the disposable income and disposable capital of any persons (including the applicant if appropriate) who might benefit from the outcome of the proceedings."

[14 ] I shall consider the legislative provisions I have set out in the preceding paragraphs later. At this stage the distinction made between different categories of person can be noted. A "child" is defined under reference to Sections 31 and 135(1) of the 1980 Act as a person under the age of sixteen whereas a "young person" is defined by Section 135(1) as a person aged over sixteen but under eighteen. Also, the scheme of the 1980 Act is such that there are two Section 28A's, the first in Part II of the Act dealing with school placing requests in relation to children generally and the second in Schedule A2 dealing with school placing requests in relation to recorded children.

[15 ] The law in relation to placing requests for recorded children has been changed by the Education (Additional Support for Learning) (Scotland) Act 2004. That Act repeals a number of the provisions of the 1980 Act and in particular sections 60 to 65G and Schedule A2 which contains the alternative section 28A. However, it is the provisions of the 1980 Act that are relevant to this case and neither counsel suggested that any assistance could be gained by looking at the new legislation.

Submissions

Submissions for the petitioners

[16 ] Mr Blair, counsel for the petitioners, submitted that the 1995 Act, by section 1(1)(a), stipulated that parental responsibilities included the promotion of the child's health, development and welfare, and that that must include the child's education. Accordingly if a parent failed to provide education under section 30 of the 1980 Act that would constitute a breach of section 1(1)(a) of the 1995 Act. If the right to education is a right of the child then any application made by a parent relating to education must be made in a representative capacity. Whereas under the 1980 Act a parent's decision in relation to education could not be challenged by the child, under the 1995 Act the child would have a remedy to compel a parent to act. Accordingly, in relation to a placing request, in a given situation, a child would be able to compel the parent to make a placing request. That showed, Mr Blair argued, that properly understood it is the child that is behind the placing request.

[17 ] Mr Blair also pointed to the distinction made in the 1980 Act between recorded and unrecorded children and young persons in relation to the provisions dealing with placing requests, which he submitted supported his analysis of the 1995 Act. In particular he submitted that section 28C of the 1980 Act permitted a young person to make a placing request in his own right quite apart from the parent's views. That was because a young person had capacity to do so. On the other hand a child lacked capacity and it was appropriate to have a rule whereby placing requests could be made by the parent of the child. In relation to recorded persons, in terms of section 61(7) of the 1980 Act there was a distinction drawn between the children and young persons. He pointed to the terms of section 61(7) of the 1980 Act and submitted that if the recorded young person was capable of expressing a view he would be entitled to do so but where the young person was not so capable then it would be the parents who would fulfil that function. Against that background Mr Blair submitted that the difference between an appeal against a decision by an education authority by a parent and a young person was whether or not the young person was capable of understanding the appeal process. If the young person was not capable then the appeal would be brought by a person who was capable. He submitted that that rationale supported the position that a parent would be acting in a representative capacity on behalf of the child.

[18 ] Mr Blair submitted that the amended definition of "parent" in the 1980 Act would include a foster parent and it would be odd if a foster parent would not be treated as acting in a representative capacity.

[19 ] In support of his submissions Mr Blair placed some reliance on the observations made by the Sheriff Principal A L Stewart QC in his decision in upholding the petitioners' appeal against the refusal of legal aid - Sinclair v The Scottish Legal Aid Board (unreported, 14 June 2005). He also referred to the unreported Sheriff Court decision of Wokoma v Aberdeen City Council (24 December 2001) which he submitted supported the position that he was adopting in this case. He also drew attention to another unreported Sheriff Court decision Harvey v Tayside Regional Council (24 September 1990). He accepted that certain observations made in that case were not helpful to him.

[20 ] In the circumstances Mr Blair invited me to sustain the first plea-in-law for the petitioners and to grant decree of declarator and reduction of the decisions of 17 and 27 August and 4 November 2004.

Submissions for the respondents

[21 ] Mr Mure submitted that properly construed the 1980 Act provided that it was the parent of a child that had title to make a placing request in respect of a recorded or unrecorded child. He submitted that Section 28 of the Act set out the general principle that pupils were to be educated in accordance with the wishes of their parents. Section 28A of the Act imposed a duty on the education authority to place a child in accordance with the placing request unless the exceptions set out in the Act applied. Section 30 of the 1980 Act he submitted supported the interpretation that it was the parent who had title because that section imposed a duty on parents to provide education for their children.

[22 ] In relation to appeals against decisions about recorded children Mr Mure submitted that it was clear from Section 63 of the 1980 Act that it was the parent of the recorded child who had the right to appeal. Other provisions such as in section 64(10) showed that insofar as the parent of a child is concerned the reference in that subsection is to "his right of appeal to the Sheriff". He submitted that the key provision was section 65 of the 1980 Act and in particular section 65(1) which envisaged that in relation to a child it was the parent who may appeal to the Sheriff against the decision of the appeal committee of the education authority.

[23 ] Mr Mure also submitted that the headnotes to Sections 28 and 28A supported his position that the focus of these provisons was on the wishes of the parents and the duty to comply with the parents requests as to schools. As to the competency of having regard to headnotes as a guide to interpretation Mr Mure referred to R v Montila [2004] 1 WLR 3141.

[24 ] Mr Mure also referred to the Standards in Scotland's Schools etc. Act 2000. He pointed out that Section 1 of that Act provided that it shall be the right of every child of school age to be provided with school education by an education authority. He submitted that that showed when Parliament wished to confer a right on a child it did so directly. Furthermore, the 2000 Act did not seek to alter the provisions of the 1980 Act insofar as placing requests were concerned.

[25 ] In dealing with the 1995 Act Mr Mure submitted that that Act did not amend the 1980 Act and did not affect the governing principle enshrined in section 28 of the 1980 Act namely that it was the parents' wishes in the case of a child that lay at the centre of the proceedings. He did not demur from the proposition that the parental responsibilities set out in the 1995 Act included the duty to see that a child received education but that did not detract from the underlying principle of section 28 of the 1980 Act. The 1995 Act provided for private law duties between the parent and child whereas the 1980 Act was dealing with public law duties in connection with a child's education. Mr Mure also referred to the position in England under reference to the School Standards and Framework Act 1998 and the Education Act 1996 and the Children Act 1989 in support of his position that the right of appeal against decisions of the kind in this case was that of the parents.

[26 ] In summary, Mr Mure's position was that on a plain reading of the 1980 Act the title to appeal against a placing request in respect of a child rested with the parents. In developing his submissions Mr Mure referred to Sinclair v The Scottish Legal Aid Board, Wokoma v Aberdeen City Council, Harvey v Tayside Regional Council (supra), R v London Borough of Richmond, [2001] ELR 21, R v Alperton & Others [2001] ELR 359, Re Anderson [2001] NI 454, R v Leeds School Organisation Committee [2003] ELR 67, Crossan v South Lanarkshire Council 2006 SLT 441, Sim v Argyll & Bute Council (unreported 13 September 2006, Lord Glennie) and Aberdeen City Council v Wokoma 2002 SC 352. Mr Mure also relied on certain passages in Wilkinson & Norrie and in particular paragraph 8.44 at pages 254-255 and paragraphs 15.28 and 15.32 at pages 489 and 491 respectively.

[27] In relation to disposal Mr Mure submitted that the case should be put out By Order, and depending on the outcome, the question of the appropriate disposal could be considered at that stage.

The petitioners' reply

[28 ] In a brief reply Mr Blair addressed a number of the cases referred to by Mr Mure. In relation to Crossan v South Lanarkshire Council he submitted that insofar as the decision in that case relied upon English cases, caution should be exercised in placing any real reliance on it. He also submitted that the circumstances in this case were entirely different.

[29 ] In responding to Mr Mure's argument that Section 28 of the 1980 Act had as its underlying principle the wishes of the parent, Mr Blair submitted that such wishes are no longer uncontrolled because of the duties imposed upon parents by the 1995 Act in relation to the health, development and welfare of a child.

Discussion

[30 ] Regulation 6(1) of the 2002 Regulations provides that an application for legal aid may be made by a child's legal representative and Regulation 14(1) provides that unless the representative is going to benefit his personal resources are to be disregarded. That is why the essential issue in this case is whether, in invoking the relevant appellate provisions of Section 65 of the 1980 Act against the education authority's refusal of the petitioners' placing request, the petitioners were acting in a representative capacity on behalf of the child or on their own behalf as parents. That issue is essentially one of statutory interpretation.

[31 ] I have set out at paragraphs [11] to [13] the relevant legislative provisions. It can be seen that Part I of the 1980 Act deals with the provision of education by education authorities. In particular Section 1(1) imposes upon every education authority the duty to secure "adequate and efficient provision of school education and further education". Section 1(5)(a)(ii) and (d) makes it clear that the duty to provide school education extends to the provision of "special educational needs" such as required by the child in this case. It was in recognition of that duty that the education authority opened up and kept a Record of Needs in relation to the child.

[32 ] While part 1 of the 1980 Act is primarily concerned with the duties resting upon education authorities, it is clear that Part II of the Act, as the main heading suggests, is essentially concerned with the "Rights and Duties of Parents and Functions of Education Authorities in Relation to Individual Pupils". The first section in Part II, section 28, is an important provision and underlines the role that parents are to play in relation to the education of children. The general principle is that pupils are to be educated in accordance with the wishes of their parents. Furthermore, section 30 provides that parents are under a duty to provide education for their children and that being so it is perfectly understandable that their wishes should play a prominent role. Section 28A deals with requests by parents to education authorities to place children at particular schools and is clearly envisaged as the main mechanism by which the wishes of parents can be articulated. Although the duty on the education authority is not an absolute one, a parent is entitled to have the request implemented unless the exceptions set out in the Act apply. As I have already observed, the mechanism used in the Act to deal with recorded children is that of incorporating in Schedule A2 a separate section 28A to deal with such children but again it is plain from the provisions of that alternative section that it is the parent of a recorded child who has the right to make the request of the education authority to place the child in the school specified in the request. The education authority is obliged to do so unless the exceptions provided in the Act apply. The petitioners request in this case was made under that particular alternative provision and refused by the education authority for the reasons I have set out at paragraph [2].

[33 ] It seems to me clear from the provisions that I have looked at so far in the 1980 Act that the party with the title to make a placing request on behalf of a recorded child are the parents of that child. When the provisions in Part II of the 1980 Act do provide specific rights to persons other than parents, it does so clearly. Section 28G provides that a young person who is a pupil can apply to be placed at a school of his choice. Section 28H when dealing with the decision of an education authority to exclude a pupil from a school provides that the parent of the pupil or where the pupil is a young person the pupil may refer the decision to an appeal committee. Thereafter, under the provisions of section 28H(6) the parent of the pupil or where the pupil is a young person the pupil can apply to the Sheriff by way of an appeal. These specific references support the view that where specific rights are given to particular persons the person who is given the right is identified. In relation to the placing request made on behalf of a recorded child it is clear that the only person identified is the parent.

[34 ] The same point can be made under reference to the Standards in Scotland's Schools etc Act 2000. By virtue of section 1 every child of school age has the right to be provided with school education by an education authority. Section 2(2) provides that in carrying out their duty an education authority "shall have due regard, so far as is reasonably practicable, to the views (if there is a wish to express them) of the child or young person in decisions that significantly affect that child or young person, taking account of the child or young person's age and maturity". That Act left unchanged the 1980 Act, and in contradistinction to the provisions of the 1980 Act does confer specific rights on a child.

[35 ] I have set out at paragraph [11] the provisions dealing with appeals against decisions about recorded children or young persons. In the first instance, section 63 provides that the parent of a recorded child may appeal to an appeal committee set up under the Act. Again the focus is on the parent when dealing with a child and indeed section 63(1)(d) when dealing with the parents appeal to the appeal committee makes specific reference to "his placing request in respect of the child" (my emphasis). Section 63(2) provides that in certain circumstances a young person may refer to an appeal committee so again the person with the right is identified. Section 65 of the 1980 Act deals with the appeal to the Sheriff and so far as a child is concerned the sole focus is on the parent.

[36 ] The fact that the focus of the provisions in Part II of the Act in relation to placing requests generally and placing requests in respect of recorded children in particular is on the parent of a child is wholly in keeping with the general principle set out in section 28 of the 1980 Act that it is the parents' wishes that lie at the heart of the procedures set out in the Act. The distinction made in the 1980 Act between young persons and children in my view simply reinforces the view that it was considered appropriate for the parent to retain title for placing requests while the child remained under 16.

[37 ] In his submissions, Mr Mure argued that the headings of the statutory provisions under consideration supported the conclusion that in relation to children, only the parent had a title. He submitted, under reference to the decision in R v Montila that the headings could be looked at as an aid to interpretation. That particular case concerned consideration of certain provisions of the Criminal Justice Act 1988 and the Drug Trafficking Act 1994. At a preparatory hearing in the Crown Court the judge ruled that it was necessary for the Crown to prove that the property being converted was in fact the proceeds of crime in the case of the 1988 Act and of drug trafficking in the case of the 1994 Act. The Court of Appeal allowed the Crown's appeal against that ruling and on appeal to the House of Lords the House of Lords reversed the decision of the Court of Appeal. In delivering the considered opinion of the Appellate Committee Lord Hope of Craighead said at page 3151-3152:

"The question then is whether headings and sidenotes, although unamendable, can be considered in construing a provision in an Act of Parliament. Account must, of course, be taken of the fact that these components were included in the Bill not for debate but for ease of reference. This indicates that less weight can be attached to them than to the parts of the Act that are open for consideration and debate in Parliament. But it is another matter to be required by a rule of law to disregard them altogether. One cannot ignore the fact that the heading and sidenotes are included on the face of the Bill throughout its passage to the legislature. They are there for guidance. They provide the context for an examination of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are unamendable, they ought to be open to consideration as part of the enactment when it reaches the statute book ..."

[38 ] I take from these observations that, albeit with care, it is open to a Court in the process of statutory interpretation to have regard to headings and sidenotes in carrying out that exercise. Although I am satisfied that the normal and natural meaning of the words used in the enacted provisions themselves clearly say that it is the parent of a child who has the title to pursue proceedings relating to a placing request, the headings do support that conclusion. As I have already observed Part II of the 1980 Act is headed "Rights and Duties of the Parents ..." (my emphasis). The headnote to section 28 states that pupils are to be "educated in accordance with wishes of their parents" (my emphasis) and the headnote in section 28A focuses upon the education authority's duty to comply with "parents requests" (my emphasis). These provisions in my view underscore the fact that the party whose wishes are to be responded to is the party making the request, namely the parent of the child.

[39 ] In dealing with the 1980 Act, Mr Blair submitted that the rationale behind its provisions was capacity. According to Mr Blair that explained why a pupil who fell into the category of a young person could make a placing request and why a child needed representation. However, it is to be noted that under the Age of Legal Capacity (Scotland) Act 1991 a child aged 12 is presumed to have the understanding of what it means to instruct a solicitor in civil matters and has the legal capacity to sue or defend in civil proceedings. Even a child under 12 can do so if he has the requisite understanding. It follows from those provisions that if, for example, a child is aged 12, and his ability to understand the nature of the legal proceedings is not challenged, then the parent's right under section 2(1)(d) of the 1995 Act to represent that child in legal proceedings is extinguished. Indeed section 15(5) of the 1995 Act acknowledges such a conclusion by providing that even where a child has the legal capacity to sue, the child may consent to being represented by the person who would have had the responsibility if capacity was lacking. These provisions illustrate that it is well recognised that a child can have the capacity to understand what might be involved in legal proceedings and in certain circumstances a child has the right to instigate such proceedings. That tends to undermine Mr Blair's submission that capacity or lack of capacity lies at the root of the distinction made between a child and a young person in the 1980 Act. In any event, in my judgement, it is clear from the provisions of the 1980 Act that the underlying purpose is to give a parent a right to make a placing request in respect of a child because it is the parent's wishes that lie at the heart of the provisions so far as children are concerned. For placing requests generally, a young person is in a different position, not because he has capacity, but having attained the age of 16 his wishes take priority over those of a parent. The 1980 Act recognises that he has achieved a degree of maturity that grants him the entitlement to have his wishes recognised.

[40 ] I have set out at paragraph [16] the submission made by Mr Blair in relation to the effect of the 1995 Act. In essence his argument amounted to saying that the parental responsibilities set out in section 1(1)(a) encompassed the promotion of the child's education, and since a breach of the 1995 Act could be challenged by the child he argued that in relation to a placing request the parent could only be acting in a representative capacity. Certainly, it must be the case that section 1(1)(a) of the 1995 Act, by stipulating that a parent has in relation to a child the responsibility "to safeguard and promote the child's health, development and welfare", must encompass a child's education. Also, section 11 of the 1995 Act does provide that a child can raise civil proceedings against a parent on matters relating to the parental responsibilities. However, in my opinion, the 1995 Act is of no assistance to the petitioners' in this case and indeed highlights the fallacy in their approach. The 1995 Act in section 2(1) does provide that a parent has the right to act as a child's legal representative but in my view that pre-supposes the child has a title to sue. Indeed, if Mr Blair is right and a child can raise an action against a parent to compel the parent to make a placing request, that simply underlines that it is only the parent of a child who has the title to make such a request. The 1995 Act does not amend the 1980 Act to give a child a title to pursue a placing request. The simple fact is that one party cannot act as the legal representative of another if that other party has no title in the legal proceedings. As it was put in Parent and Child, Wilkinson & Norrie (2^nd edition) at paragraph 15.46 on page 498:

"The legal representative's role is, however, limited by its representational, protective and administrative character, and for that reason the Court should not grant the legal representative power to do anything that the child, if of full age and capacity, could not do him - or herself."

The 1980 Act does not give a child the right to make a placing request and, if that is correct, then in relation to such a request a parent cannot act as the child's legal representative.

[41 ] Ultimately, therefore, in my opinion the issue in this case really turns upon the interpretation of the 1980 Act. For the reasons I have already elaborated upon insofar as the school education of children is concerned, the 1980 Act is concerned with parental choice rather than the wishes of a child, and the balance only shifts when maturity can permit a young person to express a view. Furthermore, I tend to agree with Mr Mure's broad proposition that the 1980 Act is primarily concerned with public law rights and duties between the citizen and the state whereas the 1995 Act sets up private law rights and duties between a parent and child. The parent's title to appeal to the Sheriff arises under the 1980 Act - the 1995 Act is of no relevance to that right.

[42 ] It does not seem to me that the submission made by Mr Blair in relation to the position of a foster parent advances his case. The policy behind the amended definition of "parent" in the 1980 Act is that of placing upon whoever satisfies the extended definition of parent the duty under section 30 of the 1980 Act to provide efficient education for a child of school age either by causing the child to attend school regularly or by some other means. Mr Mure suggested the foster parents might be financed by the local authority, but in my view that is not really the point. The person who qualifies as a "parent" under the amended definition in section 135(1) of the 1980 Act possesses the right under the alternative section 28(A) to make a placing request. If that person is a foster parent, the fact that such a parent may obtain financial assistance to pursue an appeal to the sheriff against the refusal of a placing request is not relevant. If anything, that perhaps highlights that it is the parent's right that is being vindicated and not that of the child.

[43 ] In the course of the submissions presented to me, a number of cases were referred to by Counsel. In R v London Borough of Richmond parents of a child then aged 5 expressed a preference for a place at a particular primary school. The chosen school was over-subscribed and their application was rejected by the local education authority. The parents appealed to the Appeals Committee of the local education authority but were unsuccessful. The parents sought judicial review of the two decisions that were made. They were unsuccessful at first instance and also failed in their appeal to the Court of Appeal. The statutory background to that case was the Education Act 1996 and in particular section 411 of that Act which provided that a parent was entitled to express a preference as to the school at which he wished his child to receive education. Plainly the decision in that case turned on statutory provisions different to those that are involved in this case but some observations were made in connection with the question of representation which are of some assistance. Kennedy LJ at page 29 when dealing with the issue of identity said:

"As to the first issue - of identity - I am satisfied that where a parent wishes to challenge a local education authority or an appeals committee in relation to the handling of a parent's expression of preference as to the school at which his or her child should attend it is the parent and not the child who should mount the challenge. I accept that the child may have a sufficient interest to mount the challenge, and in some exceptional cases it may be appropriate for the child to make the application for permission to apply for judicial review, but normally, as it seems to me, the only reason why the application is made in the name of the child is to obtain legal aid, and to enable the parents to protect themselves in relation to costs. That I regard as an abuse. Our legal system works on the basis that those who seek a remedy should expose themselves in relation to costs. If the device is used in future, permission to apply for judicial review may well be refused on that ground."

[44 ] In his judgement Ward LJ made the following observations:

"(1) Whose appeal?

The answer admits of no argument. Section 423 of the Education Act 1996 in dealing with 'appeal arrangements' provides:

"(i) a local education authority shall make arrangements for enabling the parent of a child to appeal against -

(a) any decision made by or on behalf of the authority as to the school at which education is to be provided for the child ..." (emphasis added)

It is, therefore, the parent's appeal, not the child's. The system is open to abuse if the child applies for legal aid and that abuse must be curtailed."

"In my judgement neither are 'exceptional' within the meaning of the judgement of Kennedy LJ. He accepted that a child may have a sufficient interest, to which both Mr Rawlings points to but the rationale of the judgement is that it is the parents' legal right and its enforcement by the parents is sufficient to protect the child's interest. Exceptional circumstances will arise where the child's interest is not protected by the action of the parents."

[46 ] Although turning on different statutory provisions the decisions in these English cases do illustrate that the general principle that underlies the education of children is that parents have the right to express a choice as to how a child's educational needs are to be fulfilled, and although no doubt the purpose behind such a choice is to acquire a benefit for the child, nevertheless it is the parents who have the right. The English statutory provisions referred to by Mr Mure (see paragraph [25]) also disclose that there is no difference in principle in the approach in England.

[47 ] I was also referred to the decision in Re Anderson, a decision of the Northern Ireland Court of Appeal. In that case the applicants, who were minors, appealed by way of judicial review against the decision of the judge at first instance in dismissing their applications for judicial review. They sought to challenge decisions of the Board of Governors of a particular school in not admitting them to that school. The relevant legislation was the Education (Northern Ireland) Order 1997, SI1997/ 866. In dismissing the appeals Carswell LCJ having referred to what Kennedy LJ said in R v Richmond said at page 468:

"We respectfully agree that the parents must as a general rule be the parties to bring an application for judicial review to challenge the admission decisions of school governors or the findings of appeal tribunals. Like the Court in Re JC, we do not rule out the possibility that in some cases the children themselves may be the proper parties to bring the applications, but there is no ground in the present case on which the appellants could be brought within that exception. We do not propose at this stage of the case to dismiss the appeals on the ground of standing, but we would lay down some guidelines for future cases. Unless sufficient ground has been established for such an exception to operate, we consider that judges ought to refuse leave for applications for judicial review of governors' or tribunals' decisions in relation to school admission to be brought in the names of the pupils. By the same token legal aid should be refused when sought for such applications to be brought in pupils' names, unless sufficient cause is shown why they and not the parents should be the applicants."

[48 ] Insofar as decisions in Scotland are concerned, Mr Blair placed some reliance on certain observations made by the Sheriff Principal (Stewart) in the appeal to him in this case against the refusal of legal aid for judicial review. Certainly it is correct to say that the Sheriff Principal said that the submission advanced on behalf of the parents appeared to be a strong one but he did so within the context of deciding whether or not the child had a probabilis causa litigandi. It does not seem to me that what was said in that case advances the petitioners' position.

[49 ] Mr Blair also placed some reliance on Wokoma v Aberdeen City Council. In that case the mother of a child appealed to the Sheriff by way of summary application against a decision of the education authority for Aberdeen City to refuse a placing request made under the 1980 Act. One unusual feature of the case was that although the mother was the appellant before the Court, the placing request to which the appeal related was actually lodged by her husband - unbeknown to her. She only became aware of the placing request when it was refused initially. She had then pursued the appeal to the Appeal Committee. She was estranged from her husband and had custody of the child and in those circumstances it was she alone who was pursuing the appeal before the Court. One of the issues which the Sheriff (Sheriff Davies) had to deal with was the competency of the appeal. In dealing with that issue he said at page 12:

"As the party whose appeal to the Committee had been refused, Mrs Wokoma had a right which was clearly competent to appeal to the Sheriff. In any event, the Applicant was really Millicent - on whose behalf the Application had been lodged and for whom the appeal was proceeding."

It was that particular passage that Mr Blair founded upon. However, what the Sheriff said in that case is of little value to this case. He was not addressed on the whole issue of title and to the extent that he might suggest that the mother in that case was acting in a representative capacity I would respectfully disagree with that conclusion.

[50 ] The other Sheriff Court decision to which I was referred was Harvey v Tayside Regional Council. That also was a case where the appellant as the mother of a child had made a placing request to the defenders as education authority in terms of section 28(A) of the 1980 Act. Having appealed against the education authority's decision to refuse her request the appeal committee confirmed that decision. It was against that decision that the appellant appealed to the Sheriff Court. The appellant raised the action qua curatrix of the child. The appeal turned on whether the admission of the child to the chosen school would be likely to be seriously detrimental to order and discipline in the school or the educational wellbeing of the pupils there. The Sheriff refused the appeal and at the end of his judgement said at page 5:

"There is one observation. The pursuer in this Summary Application sues qua curatrix to the child. This in my respectful opinion is not strictly correct. The Education (Scotland) Act 1980 confers a right of appeal on the parent and not upon the child and the application should therefore have been brought by Mrs Harvey as an individual and not qua curatrix."

That in my opinion is a correct statement of the law and supports the position adopted by the respondents in this case.

[51 ] I was also referred to Crossan v South Lanarkshire Council and to certain remarks made in that case by Lady Smith. In that particular case the father of a 13 year old boy who suffered from Downs Syndrome sought judicial review of a decision by the local authority refusing to pay the child's fees for after and out of school care. The petition for judicial review in that case was not raised by the child's father as an individual but by him in his capacity as the child's legal representative. An issue arose as to whether the child had an interest in the action because if he did not he would lack the requisite title to sue. In addressing that issue Lady Smith, having referred to R v London Borough of Richmond and R v Alperton Community School, said at page 448:

"Although the present case was presented as a claim that the respondents had failed to fulfil their statutory duty to provide services to Declan, the real question was not whether or not Declan could or should receive those services but who should pay for them. The fact is that he has since 2000 and is at present receiving the benefit of the placement at the project that his parents have chosen for him. His interests have been and are being provided for. It seems to me that these proceedings are, in truth, for the sole benefit of Declan's parents. It is they who have the interest in what is sought, namely that the respondents pay for Declan's after and out of school care, an alimentary responsibility which presently and, as a matter of law, falls on them. It is difficult to resist the conclusion that the petition has been raised in his name so as to secure legal aid funding."

She goes on to say:

"I cannot help but share the views expressed by the Court of Appeal in the Richmond case and in Newman J in the Alperton case that to raise proceedings in Declan's name does appear to be an abuse."

The circumstances of that case can be distinguished from the circumstances in this case but the observations made by Lady Smith do underline the importance of establishing whether or not a parent is truly acting in a representative capacity or on his own behalf. In this case, for the reasons I have already expressed, I am satisfied that the petitioners in pursuing an appeal against the education authority's decision in refusing their placing request are acting on their own behalf and not in a representative capacity.

[52 ] It follows therefore, that the respondents were correct in principle in refusing to deal with the second petitioner's application for legal aid under Regulation 14 of the 2002 Regulations.

Conclusion
[53 ] As presently advised it would be my intention to sustain the first plea-in-law for the respondents and to dismiss the petition. However, both counsel suggested that before any order is pronounced I should put the case out By Order. That is what I shall do. In the meantime I shall reserve the question of expenses.